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The price of everything, the value of nothing…

Let me make one thing very clear from the outset, I and my colleagues increasingly vocal opposition to the proposed reforms to criminal legal aid have nothing to do with the risk it poses to mine and their lifestyle, the loss of our jobs and incomes. We all appreciate that we do not hold any high position in society that means we are entitled to a job for life.

Our opposition is to the very real loss of access to justice, choice and fearless representation that will inevitably follow if these proposals are allowed to go ahead. The loss of protections afforded to the people that need it the most and because we see these proposals as a further step down the road to the end of a justice system that is rightly regarded as one of the best in the world. My concern is that these proposals will simply be nodded through without any real consideration of the long term effects and once in place will become almost irreversible.

Of greater concern is the lack of general awareness to the whole issue by the general public as to how it may affect them and the fact that they are being fed an argument that I initially thought was ill-conceived but now believe is intentionally misleading.

Examine the various press releases over the past few months that have come from Chris Grayling, nowhere does he refer to persons appearing in court as defendants or the accused. Instead he uses the term criminal, criminals and offenders. He refers to legal aid as profligate, lawyers as racking up huge fees for cases that run on and on, that the system is the most costly in the world, that the hard-working public pay for legal aid and that they (the public) have lost confidence in the system. In this way any attempt to amend the proposals, any opposition to the proposals by lawyers appears to be an attempt to preserve our own little fiefdom.

It does not matter that the figures used in the consultation are over a year old and no consideration is made to the reductions in the budget already achieved by a lowering of fees, the downturn in work through the courts. It does not matter that the huge fees are incurred in a very small number of cases dealing with the most serious of crimes, including terrorism and the like. These cases will always exist, these cases will always cost vast sums of money, and if you are charged with an offence then you must have a right to defend yourself and if you cannot afford to pay then there must be a way for the state to provide you with that right. You can’t have “Justice Light” for those people you don’t like or don’t want.

The argument that we have the most costly legal aid system in the world is and always has been a red herring. You cannot compare systems across the world and say that one is cheaper without highlighting the differences in approach. We have an adversarial approach which means the work is done by lawyers, in an inquisitorial system the work is done by the Judges. It costs the same amount of money; it’s just put against a different budget.

In my opinion these reforms will not have any effect on restoring public confidence in legal aid, far from it. The eventual effect will be dissolution in the reputation of the profession and the belief that justice has been disregarded in favour of price. The real problem is that affording “criminals” rights to a defence and a choice if it costs money is simply not an attractive proposition and that as a member of the public no-one believes it can ever happen to them.

Access to justice is not just about catching the bad man and punishing them. Justice is about the righting of wrongs, of balancing the scales and of ensuring what is right is done. Access to justice means that the single Mum has the ability to properly fight for contact with her children. Access to justice means that a decision by a body of state can be challenged by anyone and their views heard and explored. Access to justice allows the recently dismissed shop worker the right to have advice as to whether he was sacked lawfully without having to worry about the cost. Access to justice means that the prisoner serving a sentence can challenge the decision of the parole board to not release him as he has not completed the courses necessary when they are not available to him. Access to justice means that those accused of a crime can approach a lawyer of his choice who knows him, understands him and wants to properly advance his case. Access to justice means that a man accused of a crime can take advice from a lawyer he trusts and respects to give him the right advice and enter a plea in a timely fashion.

On 1 April the reductions in legal aid entitlement set out in LASPO came into effect, removing at a stroke legal aid from a huge number of people. These cuts were opposed by me and others and received debate time in parliament. The coming few months will show just how damaging cutting legal aid can be as those cuts bite.

On 9 April 2013 the Ministry of Justice announced further cuts in the proposal document “Transforming Legal Aid”. These proposals will not have any debate time in parliament; these cuts don’t need legislation to implement. These cuts herald an extinction event for the criminal profession and the rights to access to justice. There is still time to try and avoid the damage these proposals will make. We need as a profession to stand together and not protect our own self interests. The proposals, together with the QASA proposals are designed to set Counsel against Solicitor. If we don’t stand together then we risk being written off as simply lobby groups. We need as a profession to highlight these proposals to the public; to let them know what is at risk, we need to show that the Government know the price of everything but the value of nothing.

Do not be fooled by the use of the word consultation. A consultation involves a dialogue, a discussion between interested parties, at the end of which you will hopefully reach an agreed way forward. This is not a consultation; a decision has already been made as to how the MOJ will proceed. What is being consulted on is the manner of the demise. The current process is a sop, a necessary delay in order to ensure there are no available challenges to the policies to be implemented.
If evidence is needed of this take a look at how the response questions are worded. There is no question asking whether PCT is an appropriate way forward, no questions seeking a viable alternative or whether cuts themselves are even necessary. In essence it’s akin to asking the chicken “Would you prefer Sage and Onion, or Lemon and Thyme?” Either way the chicken is going to be stuffed.

Consider also the recommendations contained within the Carter Review of Legal Aid in 1996. All of the primary recommendations with the exception of BVT and Single Case Fees have been implemented. It is these two proposals that form the basis of this consultation.

Although there are a number of worrying proposals within the document the biggest and the one that will have the greatest effect is PCT, or Price Competitive Tendering. That will mean providers bid against each other to provide advice at the police station, and representation for all litigation in the Magistrates and Crown Court at a fixed price per case. Inevitably the lowest bids in each area will be awarded a contract for a minimum period of three years, extendable to five.
The Government believe that market forces can be made to apply to anything from the bulk purchase of hammers to the provision of professional advice. The problem is buying a bulk load of hammers is quite a different proposition to the purchase of professional advice. Sometimes market forces simply cannot be left to decide how something is provided, and particularly when the Government are the purchaser.

More pertinently the Government don’t want market forces to decide how and at what price criminal legal aid is provided, hence the need for the Government to “rig” the market in the first place.

If pricing were left exclusively to the market then as a whole the price would go up, we would no longer work for the current pay rates as it does not reflect the cost of doing the work we do. We already work at a significantly lower rate than we used to and that we could charge.
So the Government need to set a price cap, a maximum amount of money they will pay for the services to be provided. They have set that cap at a rate 17.5% less than the current fee structure. This is to prevent the providers holding the Government hostage on price. So already providers have even less incentive to bid for the work. In order to make it worthwhile the second stage is to cap the number of providers in any given area and then guarantee those with a contract a certain percentage of the available work. What was a free market with anyone able to compete and offer their services is now a closed market with a price cap. The proposed system does not allow for growth, it does not allow for new entrants, it encourages stagnation and the slow inexorable demise of the independent profession.

At the present time there are approximately 1600 contracts for the provision of criminal legal aid, serviced at one end of the spectrum by sole practitioners working from the spare bedroom, to at the other end very large firms with multiple offices servicing large geographical areas. This means that the Legal Aid Agency have supplier relationships with each provider which creates paperwork and administration, which in turn costs money. Under the present system as long as the contract provider meets the necessary quality criteria and can fulfil contractual requirements then they are able to carry out publically funded work.

Quality criteria is important, it means on a most basic level that the person you see is being audited, that someone is happy with their ability to provide the advice and representation you need. More importantly reputational quality is in the current system a massively important benchmark. You may be able to fill forms out and pass tick box audits but if you are no good in court, give poor advice and achieve bad results due to lack of ability or commitment then who would instruct you? Conversely, if you are good at what you do, show commitment and understanding to your client and are able to provide a consistently excellent service then your reputation will increase and inevitably you will get more work. Clients will choose to come to you, and will avoid the others. This is where at present the market is deciding.

In the new regime there will be 400 contracts conducted by a lot less than 400 providers. There will be no sole practitioners, there will be no niche specialists; they will no longer be able to survive let alone be in a position to bid for a contract. Instead there will be large firms and in time national providers such as G4S, Serco et al. The High Street lawyer will no longer exist. I do not think that the large multi-national public service companies will come in on the first bid round. They will want to see how it all works out, and whether there will be a further reduction in supplier base. I do think they will come in, perhaps on the next contract when the Government introduce a full public defender service run by one of those companies, after all they could then operate a full cradle to grave service; investigated by them, represented by them at court and rehabilitated by them at a prison or a probation centre. The justice system as we know it will then truly be dead.

Smaller firms will be unable to bid due to constraints on budget, logistics and so forth and the cost of scaling up. Larger firms may not bid, as the bid price will not be worthwhile. Legal Aid partners at law firms have a hard enough time justifying their existence on the margins we currently operate; imagine taking that discussion to a share-holders meeting. More importantly is the restrictions the regime will have on the growth of a firm or provider. If you are guaranteed no more than a percentage of the work available in any given area then the only way to increase that percentage share would be for a further reduction in the number of suppliers. It’s something that simply cannot happen if there is to be true independence and avoid the unavoidable client conflicts. Further, you can’t rely on repeat business or recommendation. Cases will be allocated on a rota basis at the police station, own client ceases to exist.

As I mentioned above the need to provide quality advice and representation now is implicit in what we do. A client will never instruct us if we are no good at the job. In the proposed regime the issue of quality is a concern. Once a provider has a contract, they have it for three or five years. Whilst certain quality controls may have been tested initially where is the imperative to ensure they are upheld? After all the work can’t be given to someone else, there will be no-one. I have no doubt that I and my colleagues will continue to work as we do and provide the quality of service that is to be expected by our clients.

That doesn’t mean that quality will not fall, budgets need to be kept, and targets met, that is bound to place pressures on what is done, and large new corporate ABS providers may not operate to the same standard The Government is aware of this and it is mentioned in the impact assessments. As a lawyer doing criminal work now it is insulting to think that someone believes I do not give anything other than 100% effort and commitment to my job or that I would not continue to do so.
In order to guarantee a percentage share of the work available in any given geographical area the new proposals do away with “own client” work. No longer will a client be able to choose who represents them at the police station or at the court if they want publically funded legal aid. This is a huge move and one that fundamentally attacks the principles of access to justice. More importantly, when set against the stated aims of the proposals to introduce efficiencies and cost savings to the fund it makes absolutely no sense. Yet without doing away with client choice, the issue of price competitive tendering cannot exist.

A client at the police station will be allocated to a provider if they ask for a solicitor. The proposed basis of allocation gives some indication as to how ridiculous this measure is. The consultation asks whether the clients should be allocated on initials, month they were born, sequentially, or on a rota basis. What happens if the client simply wanders into the office, as they so often do now, how can the Government ensure that one provider only does their percentage share of work.

The reality is that many clients are regulars, or they know a regular, or they have a friend of a friend etc. They trust the lawyer they choose to represent them and to give them advice. In that way I am able to tell my client, and he will trust me and believe me, that the game is up and he should plead to the particular allegation he faces that day.

I also know which one of my clients have mental health issues, have an alcohol or drug dependence, have a particularly difficult home life. I am able to use this information in their best interests and because I know them and they trust me I can put this information to the court quickly and effectively. If Mr X meets four different lawyers in four different cases of shop theft within a space of a week then he will need to tell each one his life history, many clients are reluctant to give information and only do so after a period of time. He may receive a sentence that is not right and more importantly there will be four separate fees. Under the current regime it would be clear those four thefts in a series of offences but only one case and therefore only one fee at court.

I have worked hard to build my reputation, as have my colleagues. A good lawyer, trusted by his client will always do a job quicker and more effectively and a client is more likely to accept the hard straight forward advice that is sometimes needed. A relationship built on trust between a client and his solicitor means that there is less chance of a pointless trial, less chance of clogging the system and more chance that justice is not only done but seen to be done by both the client and the victim.

It is bad enough now to try and convince some clients picked up as “duty solicitor” that I am independent of the police. With others there is the belief that the “duty solicitor” is not a proper solicitor and they will use me just until they can contact their usual brief. Imagine how these clients will feel when the only solicitors attending the police station are “duty solicitors” allocated to them on hair colour.

Finally, on this point, “Access to justice should not be determined by your ability to pay…” the opening remark from the consultation document. How can this possibly be held to be true and be believed if only those who can afford to instruct a lawyer of their choice are able to do so?

This blog has concentrated on the issues facing solicitors and the consultation process. There are equally dramatic effects proposed to the Bar and further reductions in their remuneration rates which I won’t cover here simply because I do not want to make this as long as the consultation.

There is one striking proposal that I do want to comment on, the reduction of pay the same fee for a short trial as a guilty plea. This is a dangerous proposal as far as public perception is concerned, and frankly downright offensive to suggest that clients are advised to plead not guilty simply to increase income. I have never met a barrister yet who has advised my client to plead not guilty just to get a trial fee. Please take the time to consider the blogs, articles and press releases put out by the CBA.

For a very long time we as lawyers at all levels have made the system work with our goodwill and hard work for diminishing returns and yet we all turn up to work and continue to do the job. Why? The answer is simple; we truly believe that access to justice is so much more than an ability to pay, that every person has a right to the best possible representation and that cheap and “efficient” is rarely synonymous with value and commitment.

If you are a lawyer of any branch of the profession speak to your clients, let them know what is going on and how they can respond. The Government may procure your services but the client is the one who needs your services. Nobody likes the idea of spending public money on “criminals” until they are the one who find themselves in a police station at 3am and the only friendly face is the lawyer willing to listen.

Sign the petition, write to your MP, write to your Police and Crime Commissioner and respond to the consultation. We are not just a foolish, noisy minority…we provide a voice for all of those who can’t speak for themselves.